Common Law Conflict of Interest - Assignment Example

……………………… ……………………… POLITICAL SCIENCE DEPARTMENT PUBLIC ADMINISTRATION PROGRAM ETHICS AND PUBLIC OFFICIALS FINAL EXAM, Fall Semester 2011 Question 1 .C and D. Chapter 171 of the local government code does not apply to members of a board of a higher education this is as per Opinion number JM 817(1987) delivered by the then Attorney General, where he observed that, state universities are prohibited from entering into a contract with a public official who has a direct or indirect financial interest. Citing Opinion-624, the Attorney General acknowledged that, small pecuniary interest also constituted a prohibited financial interest. Thus, the 2% shares are co-owned by Linda Crane has a pecuniary interest in the contract as she co-owns the property with her husband. Delegating her voting powers the president of the university was legal does not remove her entirely from the contracting process and, therefore, it does not eliminate the conflict of interest since the board remains responsible for the management and general supervision of the university. University of Texas is prohibited by common law conflict of interest from entering into a contract for the purchase of products, in which, a regent had an interest. The fact that, the purchasing decision has been delegated by the board of regents to subordinate officers and employees within the university does not matter. University board is subject to stricter rules. Question 2 E Texas Nepotism law prohibits the hiring of any person by the school board if he is related to any member of the board within the third degree of consanguinity. This means that even if her sister refrains from voting, she remains a member of the board and thus falls within the category prohibited by the law. In determining the level of kinship, the counting begins from the interstate to the nearest of the common ancestry going upwards and then downwards to the claimant. Every generation represents one degree of consanguinity. Using this calculation, we can establish that Kristten Lotto belonged to the second degree of consanguinity from her brother and thus covered by the Nepotism law. Hiring him as an independent contractor would be illegal according to opinion number DM 76 as, Nepotism law does not provide a distinction between employees and independent contractors. This opinion disregarded opinion JM 472, which allowed contractual relationship between corporate entities and government bodies. Therefore, to be hired, her sister has to resign from the board before the voting. Question 3. A and E. The city of Kingsville, being a home rule city is governed by a Charter. If the Charter allows dual office holding then Willie Rams appointment can be legal. This is as opposed to a general law city where they are governed by ordinances. A general law city must follow the laws of the State. A person automatically resigns his office upon his announcement of his candidature for another “office of trust or profit”; if more than two years remain in his tenure. Article XVI of the Texas Constitution, does not include a council member as an officer, Willie Ram is not covered, he is thus eligible to run on the new board. The fact that, the new office of new board is not reimbursed is not an issue since it is a position of influence and is deemed as an office of trust or profit and he is, therefore, an officer. Question 4.B and E. Rodgis position as the commissioner does not go against the rules of dual office holding. First of all, Article XVI of the Texas constitution allows for a county commissioner to hold more than one civil office. Second, the voluntary position she has decided to join is not a paying one and is not within the category of a public office. However, one of the positions supervises the other and can run foul the doctrine of incompatibility and thus, the fact that, she appointing herself in an unpaid position is irrelevant. Question 5. C. The Constitution of Texas under Article XVI provides for an exception for the holding of more than one civil office of emolument. One of the exceptions is that of the county commissioner. Therefore, Beth Ocha can be holding her office and still run for the office of the school board. However, the doctrine of incompatibility does not allow her to run for the new position since the two positions are incompatible with each other, given that they may be having conflicting loyalties in exercising their duties. For example, if the two entities have a contract between each other, Beth might be faced with a conflicting interest situation. The consequence of holding two offices is that, by taking up the second position, he will be deemed to have resigned the earlier office. It is essential to note that there are no civil or criminal penalties that may follow. Question 6. B and D. There is no general statutory provision governing ethics for public officials.The law prohibits public officials who have a pecuniary interest in contracts whether direct or indirectly even if he is honest or not. Under common law, a contract entered where there is a conflict of interest is void and illegal. This was held in Delta Electric company v City of San Antonio. Section 171 of the Local Government Code provides that, a public official is deemed to be interested if that person is related to the official in the first degree of affinity or second degree of consanguinity. However, Arthur Vegas disqualified himself from voting for the contract in which he is interested by virtue of him being related to his son. Advisory opinion number 3 of 1999 explains circumstances that a person can refrain himself from voting where there is a conflict of interest situation. The Attorney General advised that he should refrain himself from voting where he is likely to affect his economic interest. He is allowed to disqualify himself under section 171.004 of the local government code, this law is less stringent than that applied to high education boards and thus the contract can be awarded to his son. Question 7. A and E. This law is primarily found in Chapter 573 of the Texas government code. This law prohibits most public official who have authority from appointing or voting for a close relative to a paid job position. An officer is that person who has sovereign powers including, the public vote, prosecution, awarding of contracts and adjudication of cases. A governing body cannot delegate its hiring power to an employee. As a general law city, Paris is governed by an ordinance, and thus the council is subjected to nepotism provisions. To determine who is a relative and thus affected by the Nepotism law, the degree of consanguinity has to be calculated, and those who fall within the 3rd degree of consanguinity and 2rd degree of affinity are covered a second cousin does not fall within this group. In addition, a council member’s mother does not go against nepotism law for, his appointment has not been influenced by the council member because he is the sole person with the discretion to hire and fire a person. Question 8. A. A trip that is solely for pleasure purposes is prohibited generally by the state laws. A lobbyist is not prohibited from taking a public officer on a fact finding trip provided that the lobbyist is present at the trip and the trip relates to official duty. There is no limit on money spent on food and beverages. However, the lobbyist must be present for the public officer to accept food entertainment and beverages. The limited amount that can be spent on entertainment is $500 per employee or state officer. A maximum of $ 500 per year can be spent on an individual state officer or an employee. The law excludes food, beverage and entertainment as gifts. A charitable gift on behalf of an official is not prohibited so long as the officer does not have any discretion over the gift. A lobbyist entity must be registered if it exceeds expenditure or compensation threshold. He is prohibited from bribing a public servant in exchange for his vote or any other exercise in which the public servant has discretion. He is also prohibited from giving a gift and loans to public servants. Question 9. A. As a city official, Jennifer Hook should not accept any gift from any one seeking or doing business with the city, lobbyist or any person seeking zoning/platting decision. However, this rule has exceptions. The exceptions are that; she can accept gifts of nominal value (not exceeding $50), meals of up to $50 but not exceeding $500 annually and up to $500 for lodging, transportation and entertainment. Accepting gifts goes against section 36.08 of the penal code and is considered as a class A misdemeanor. Exceptions have also been provided under state law whereby, the officials are required to report gifts of over $100 and incase the item value are below $50 they can accept it. Question 10. When a lobbyist receives compensation or reimbursement of more than $200 or a combination of both for a calendar year must register. Preparation for lobbying must be compensated. a. False, since $800, exceeds the threshold set in calculating the threshold, the cost of sending emails to the states senators telling them of his new career and the cost of lobbying should be added. b. False, direct communication with members of the executive or legislature branch of state government to influence administrative action is lobbying. c. True, a lobbyist or entity is required to register compensation or expenditure that exceeds the threshold of $200. d. True, there is no limit on the amount spent on food and beverage. e. False, lobbyist must be reimbursed for expenditures that they incurred in lobbying for a particular legislative action. So Sane must accept payment from Tyland Homes. 1. True. 2. False. 3. True. 4. False. 5. True. 6. True. 7. True. 8. True. 9. True. 10. True. References Provin, R.J.Office of the Attorney General State of Texas.Opinion No. JM-817. Retrieved from https://www.oag.state.tx.us/opinions/opinions/47mattox/op/1987/htm/jm0817.htm Texas Legislative Code Texas Constitution Read More